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>> host: welcome in this week the senate judiciary committee approved changes to the electronic privacy communications act of 1986.
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this week on "the communicators," we want to explore what those changes may mean two different groups. joining us here on our washington d.c. site is gregory nojeim at the center for democracy and technology. what is the current law when it comes to law enforcement and e-mails and cell phones? >> guest: the short answer is that is confused and the longer answer is for e-mail that is less than 180 days old law enforcement need to warrant -- for e-mail more than 180 years old, it is just a subpoena, so there's no judicial intervention, no high standard of proof. for documents you store in the clouds, if you store something with google docs and come back and edit it, that is available with a subpoena. cell phones, there is no statutory provision about location information.
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so the courts have been in different places. some say if it is real-time location, for that they need a warrant. others say this gps location for that they need a warrant. there is not a clear rule yet for cell phone. >> host: what are the changes the judicial committee has approved? >> guest: they focus on content of communications. they said it should matter how will the content is. it shouldn't matter whether you stored it with this kind of a communication service provider or that one. for all of it there should be a warrant required and then they maintain the existing exceptions to the one requirement in current law. so if there is an emergency, for example, law enforcement is not to go to the judge. they are able to get a voluntary disclosure from the provider right away. >> host: gregory nojeim is the center for democracy and
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technology. what are your views on the changes made by the senate judiciary committee? >> guest: i think they did an excellent job. they have been two years looking at this question have multiple hearings. they've had many meetings with law enforcement come with privacy advocates, with industry and they settled on this one revision, very important revision to the privacy act. that law has been around since 1986. that is eons in internet years. 1986 is 26 years old and has had a significant privacy of great since then. >> host: joining us for our new york city is konrad motyka. he's an fbi agent. agent trained to, what is your view and the fbi association's view changes made to the 1986
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law? >> guest: as the proposed changes made their way up committee, there is discussion going forward and a lot of acknowledgment and parts of the law that needs to be tweaked with further input to take one person accused into account. these changes that have been proposed represent a very fundamental change in how these types of stored communications are accessed by law enforcement. mr. nojeim is correct and there is a distinction between content that is fresher than 180 days in content older than 180 days. the proposed amendments to several things. one, for content older than 180 days it increases the legal standard by which law enforcement can obtain the actual content, raising it from a standard of reasonableness to a standard of probable cause and having a search warrant be required to obtain the data from
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which the form of judicial intervention because a search warrant needs to be signed up by a judge. it also creates a presumption of disclosure to the individual whose records have been taken, whereas ordinarily with search warrants is a presumption of delay. so as a representative for an organization that speaks for law enforcement investigators, we are concerned with practical aspects of the law and what it means to us in our daily work. when congress passed the administrative subpoena powers online for a snack, they did that to confer great flexibility on law-enforcement. flexibility and agility and the ability to protect and defend the american public. some of these measures remove the flexibility aspect come increased the bureaucratic aspects and frankly make our jobs more difficult, perhaps more difficult unwarranted.
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there has been discussion of some of these issues and aspects need to be revised and looked at before they pass the final version. i would draw attention to one thing mr. nojeim pointed out, that there is an emergency exception to the law. i would point out that is strictly voluntary and is not a requirement. from a law enforcement is because not every service provider asked the same way because of an emergency has to provide information, we feel the exception at this point is not strong enough and the exception rather than voluntary needs to be mandatory and codified into law. >> host: agent trained to, what is the significance of 180 days? >> guest: the 180 days is not something law enforcement imposed. at the point they were looking at back the, is a somewhat
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arbitrary cutoff point regarding whether the e-mail content could be considered recent or something that was older. that is something that came up originally. >> host: brendan sasso of the newspaper is also joining our discussion. you are on "the communicators," mr. sasso. >> guest: thank you. you have concerns of legislation. i'm wondering is specifically what gc changed, what provisions should be added before they should become law. >> guest: well, i am concerned that in its present form the amendments don't really seem to take law-enforcement concerns into account at all. there was some distinction drawn by the committee between civil access and search warrants and subpoenas and so on for data in a criminal. they did draw a distinction between the two are very different. i would point to several issues.
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two primarily. one is the voluntary disclosure, the emergency deception. those need to be further defined and codified. as i pointed out before, not every service provider resume request from law enforcement in a similar fashion. that is first and foremost. there also should be a production component. right now, there really isn't anything that specifies how quickly, whether it be through search warrant, or emergency conception how quickly they need to respond to the request. so that's something that needs to be addressed. further, i would suggest that a search warrants are adopted across the board for this type of material, it be treated the same way as other forms of interception under title 18, where there is a presumption of delay, not a presumption of disclosure. >> host: i guess what i'm struggling to understand here is
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why there is a distinction between the way the law works or something electronic and the way it works for things that are physical. it seems what the law does or the bill from senator leahy is that it gives the same protections for e-mails in your inbox that you have four letters in your home. i wonder why the exigent circumstances that allow police to act without a warrant, why that would be sufficient for electronic mail when it is sufficient or physical investigations. >> guest: well again, if you look how a search warrant is handled for the seizure of property, first of all the affidavit for the search warrants can be sealed by the court. they can be accompanied by a nondisclosure letter that is indefinite. in other words, if it's obtained from a third-party, there is an ability for the investigators to delay until such time as the investigation is concluded.
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that is obviously for very good reason. it isn't just the individual agent bernie bob person entity deciding on their own. there is court oversight. court oversight in the fact the warrants are issued by a court. it is independent oversight, judicial oversight of the entity. what the amendments to this change to presumption of delay to a presumption of notification by saying for law enforcement, investigative law-enforcement within 10 days disclosure must be made unless a court order is applied for a 90 day increments, were disclosure notification is delayed. the concern very slight change some pain that has worked very well to this point, has protected the public, protected the integrity of the investigations would be snowed demonstrated violation on the part of law-enforcement in many roles in regulation.
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granik, epca should be updated. with the advent of cloud computing and how we act culturally in terms of how we live our lives, e-mail and facebook the law should be looked at and updated. unfortunately, a lot of what has been proposed for change at this point is not to the advantage of law-enforcement investigations, but to their detriment. >> host: i need to back up a little bit and understand better. first, disclosures of your e-mail and other documents today are made with a subpoena. that means there's no judicial review and the subpoena process requires that law enforcement if you notice. you have to have noticed in the disclosure is made. there is a provision in the bond of the last law-enforcement to get delay notice. but leahy did in the whole judiciary committee said was if
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were going to a standard, how do we maintain that a visceral? what they said his were not going to go backwards on notice. we will keep it where it is then required notice of the warrant disclosure. i don't think we are moving a lot there. in fact, notice of the warrant disclosure can be delayed for double that. that was in the original law. this is at the request of the fbi agency association, which wrote a letter to senator leahy asking for a longer period, so they doubleday. i think we have to also remember that what we are talking about here is the contents of communications. these are not the kinds of things that are less sensitive. you know, for less sensitive information, information like who belongs to this e-mail address, where did they live, how do they pay for their bill?
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for that information, building blocks of law-enforcement investigations is still under the subpoena standard. back to the warrants and notice idea for just a minute, normally a person gets automatic notice of a warrant. you know why? and knocks on their door and says hello, we have a warrant to search your home. you have automatic notice because were in a different world. on first the grocery third-party to get would use to only be in your home. in that world, it is appropriate to require notice. i think the notice should be prompt and law enforcement should be able to get a delay in notice when it is appropriate. evidence would disappear immediately. that is exactly what the judiciary committee did. agent motyka raised to other
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issues. one was make an emergency disclosures mandatory and in the discretion of law-enforcement insiders in the discussion for providers. i think he would have constitutional implications and i'm not sure that congress could even do it. i do think that if there is a problem with the emergency disclosures and whether they are being made in proper emergency is, that congress ought to look at it. there are two b. study and a reporter. i suspect that are there are some instances where the disclosure should be made and probably instances where they should not have been that they were. i am not saying that there are abuses. i'm not saying there misuses. i am saying if we change the rules on emergency disclosures, you ought to be able to point to things that we're trying to fixb and get a better idea of what
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they are. finally, on how quickly providers respond to law enforcement requests, i think additional study needs to be done about as well. one amendment that was noticed but never offered the set statutory deadlines for responses to law enforcement for information. that could backfire for providers receive thousands of requests and demand for law-enforcement and they prioritize them to the seriousness that law-enforcement size is involved. they say look, this is a nuclear incident we've got to get this right away. you want the provider to respond right away, not respond first in, first out, which is what would happen if they were statutory deadlines. sorry, i know you've got this important case, but we've got a 14 day deadline to meet this
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important case and we are going to need it. we will get to you on the 13th day. i don't think we want that world. i think we want to providers to respond quickly and have more discretion to respond in the most serious cases first. >> host: quick follow-up, aged motyka. >> guest: if it were that serious, it would follow under the emergency exception rule. in discussing emergency exceptions, i don't mean to suggest there should be appointed closet every time one for smith declares an emergency because they would do that all the time in my own work. there is room for congress with input from law enforcement and all the other stakeholders to come up with specific instances such as issues involving violence, imminent threat of destruction, child. those kinds of things, kidnappings as the curse of electronic communications. those kinds of things for
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everyone agreed it would fit wouldn't be blanket applied across the board. i want to talk of a good briefly about the subpoenas as well. i am speaking only from per state that an fbi agent conducting criminal and the sorts of investigations. i do recognize there are a variety of administrative subpoenas, some civil, some criminal. but for fbi agents at the user an administrative subpoena, and the circumstances under which they fought are very narrow and defined. for instance, they can be used in instances of child exploitation. they can be used in narcotics investigations into certain specific instances can be used in health care fraud investigations. other than that, the fbi doesn't have the use of administrative subpoenas. secret service can use administrative subpoenas in the case of a thread against any project he can't be at the
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president or anyone under secret service, they have the ability to use administrative subpoenas. it is nice if any agent sitting anywhere anytime can issue a subpoena for content. they say very narrow, defined circumstance that has that feel to this point. >> host: very quickly, konrad motyka is a special agent based in new york city. he is currently assigned to the counterintelligence division, asian organized crime narcotics task force and a former member of the s.w.a.t team. gregory nojeim is at the center for democracy and technology, where he directs they are freedom security and technology. he spent several years at the american civil liberties union as the associate or, chief legislative counsel at the washington office. brendan sasso with the hill, next area discussion, please. >> host: i want to ask briefly of competing civil
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investigations. this is something agent trained to touch briefly on. i'm wondering if the federal trade commission or the securities and exchange commission want to get information from an e-mail provider. they're investigating google i want to know whether the company is engaged in unethical business is. does this legislation impede that investigation? >> guest: let me explain why there might be better examples. google acts as a provider of communications service and is a provider of communications service. so i think what the world ought to look like as that the ftc, for example is investigating google and wants to get google's corporate records, it should be able to serve a subpoena on google and get those records. that is what the legislation is intended to do. if the ftc is doing an
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investigation of somebody else who has a gmail account into your e-mail is not a google corporate records, that is where the rub is. the ftc, the fec and other federal agencies want to be able to go to the providers the subpoenas to get this information. from our perspective, what they are asking for is a huge hole in the warrant requirement for civil investigations. it kind of turns the normal world upside down. the normal rules criminal investigations for them will give more access to law enforcement. they're looking at crimes that are very serious potentially like terrorism, drug crimes. they're looking at serious crimes. the investigative agencies are investigating something within their jurisdiction, serious
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issues with the context is not a criminal context. it's a civil context. so what they are asking for is kind of reverse. let me add one more thing. we are trying to avoid a world where the investigative agencies go first to the providers of communications service to the people to whom we are entrusting all of this very sensitive data, who we communicate with, what we said, what we thought, where we were. it is a much friendlier world for civil liberties that law-enforcement has to go to the target of this investigation as opposed to going behind them to these providers. look down the road a few years. providers will have more and more information about our committees. whenever we talk about the law-enforcement or civil investigations getting access to the information that providers
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have, we are talking about challenges in terms of notice about whether the person will be given notice in a timely manner. if they go directly to the person, it's automatically notified. criminal, probably not appropriate. civil comment they should go first. >> host: there's an interesting wrinkle in the story a few weeks ago when the story about cia director david petraeus came out and how the fbi was looking into his e-mails. i wonder how you think that fits into the story and whether that creates rmn 10 for they were surprised they could look without a warrant or does it play the other way that it was a threat to national security, we applied the fbi was finding out about that. >> guest: remembered for national security surveillance, there is a separate statutory scheme that is sent touched by the leahy judiciary committee
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legislation. a surveillance act sets the rules that are used to the national security surveillance in a surveillance semantic of classified information can be investigated under those authorities. now, i think the petraeus and particularly with general alan, that incident really got members thinking about how brad and fbi investigation with electronic evidence can inspire people who frankly in the case of general alan, 20,000 to 30,000 pages of his e-mail or turned over to his pentagon and yet, not suspected of any crime. i think that travels a lot of people. >> host: agent motyka. >> guest: yes, several issues there. as mr. nojeim points out in the
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above pointed out the update for epca has been there for some time and has worked on it for some time. whether the general petraeus situation has sharpened the focus of the leave to others to decide. i will point out although i don't have direct knowledge of that particular investigation, i would suggest any evidence obtained with it gained through a search warrant and not through any type of surveillance. >> host: agent trained to, how with the new changes proposed, how would that change this case? >> guest: well, you probably would not have changed the case either way. when prosecutors see a case of the utmost sensitivity, which they certainly would've seen here, they would've proceeded with caution by using a search warrant to obtain the data and probably having lived in italy for nondisclosure of the investigation until such time as it was complete.
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so based on the tools available to them for the investigation, it really wouldn't matter pre-or post-amendment. they would've proceeded along the same lines regardless. >> host: we have one more question from brendan sasso. >> host: at the market the other day, chairman leahy said he's glad the past these changes and he looks forward to getting this passed into law and the next congress. there's not a chance of it happening this year. i'm wondering what needs to happen politically, what are the obstacles to passing it and i guess that would be next congress. >> guest: first it is important to remember how strong the coalition behind this legislation is. you've got the american civil liberties union, americans for tax reform, electronic frontierg foundation. you've got people across the political spec drum and 95 companies that might otherwise be suing each other sometimes.
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there's apple, microsoft, at&t,g intel, adobe, a lot of the largu companies in this space are behind this legislation. i think it has a lot of energy behind it. the bill coming out of committee with a good, strong bipartisan support is going to strength in the coalition, strengthened the effort. i agree that there needs to be more discussion of this legislation. there needs to be hearings early next year. but i think we have a good starting point now in a good place from which to move forward. >> host: konrad motyka, how often in your job to use the e-mail searches or cell phone searches? >> guest: my primary experience has been in the investigation of organized crime and narcotics. i personally haven't made tremendous use of that as a tool
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in that particular arena. so i don't want to put myself out there someone who uses it all the time. if i could address briefly what was said earlier, law-enforcement law-enforcement concerns are threat to the debate fairly late. i am hard and as mr. nojeim said that there's a consensus to take a look and address it and that's law-enforcement concerns will be taken into account, based on some of the discussion occurred between members of the parties. i'm certainly happy to hear that. >> guest: i just have to correct that because i've heard that before. i have to say law enforcement has been at the table since day one, usually through the department of justice, not through the fbi association or other third parties, but really from the first hearing, doj testified, the next year doj testified. the third hearing was just
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government is on the epca reform. i just don't think it's a fair criticism to say that law-enforcement haven't been at the table. >> host: final word, agent trained to. >> guest: although it doj may have participated, the fbi, dea and other agencies have not been at the table to this point, nor have the relatively small lobbying groups such as the one i represent as a volunteer and the only other voluntary association that represents the concerns of 1811 in the law-enforcement arena. we have now been told by judiciary committee that they will be happy to have discussions with us, but this is only taken place in the last few months. some of the other stronger groups that have been out there for sometime advocating for changes in epca. >> host: konrad motyka, gregory nojeim, brendan sasso, thank you for being on "the
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communicators."

tv
The Communicators
CSPAN December 3, 2012 8:00pm-8:30pm EST

News/Business. People who shape the digital future.

TOPIC FREQUENCY Fbi 6, Leahy 4, Brendan Sasso 4, Mr. Nojeim 4, Google 3, Washington 2, The Fbi 2, Gregory Nojeim 2, Ftc 2, Mr. Sasso 1, Bernie Bob 1, Smith 1, Granik 1, Italy 1, Motyka 1, David Petraeus 1, Konrad Motyka 1, At&t 1, Adobe 1, New York City 1
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